HL Deb 03 November 1921 vol 47 cc158-70

Order of the Day for the House to be put in Committee read.

Moved, That the House do now resolve itself into Committee.— (Lord Muir Mackenzie.)

LORD SUMNER

My Lords, before this Motion is put from the Woolsack I wish to say a few words to your Lordships to clear up a misapprehension which I think is rather of a serious nature with regard to this Bill, and to its chance, or its right, to be regarded as a Bill which can pass this House with general approbation, and which it is right and proper to expedite through every stage, as if it were an emergency measure arising in the middle of the war, instead of being merely a Bill to reverse a recent decision of your Lordships' House in favour of a limited number of bookmakers.

I see that my noble and learned friend, Lord Muir Mackenzie, said yesterday, in the course of his remarks introducing the Second Reading of the Bill, two things, both of them of cardinal importance. One of them was that it was a Bill which he did not think ought to proceed, or could proceed, unless there was what might be called general consent to it, and the other was to the effect that the decision of your Lordships' House in a judicial capacity had really turned upon the discovery, in the recent case of Sutters versus Briggs, in which judgment was given a few days ago, of a section of an Act of Parliament which had not been observed in the other Courts; and, upon the argument that by some oversight the law had been discovered to he different from what it had hitherto been supposed to be, my noble and learned friend justified a most extraordinary portion of his Bill, which gave it a retrospective effect, so as to take away from one class of persons their legal rights, which at this moment are perfectly unimpeachable, while I leaving another class of persons entitled to recover the amounts that they may claim I without any defence being possible.

The distinction between the two classes is that the meritorious ones are those who rushed into law, issued writs and took action before October 25, and the unmeritorious are those who kept their money in their pockets and waited to see what your Lordships would have to say to the measure. My noble and learned friend, actuated, I am sure, by the very best of motives, has declared himself in a matter which, I dare to say, does require some consideration. He said that he had spoken to various members of the House whose authority is recognised here, and had found no disposition to disapprove of the measure, and also to many members of the legal profession and Judges of the highest position who did not repudiate the word "ridiculous," which had been passed either upon the Act, or upon the construction which your Lordships put upon the Act— I am not sure which.

All I wish to point out is that so far as I am concerned I have never been spoken to by either the noble and learned Lord or anybody interested in the passage of the measure, for, if I had, I should at once have expressed the astonishment with which I read the Bill for the first time last night and found that it actually provided that persons who have an absolute right to recover their money now are to have that right taken away retrospectively, for no earthly reason except that they did not commence their action soon enough. As I took part in the recent decision I loathe the idea of taking any part in the discussion, but. I deprecate the view that, at the desire of a very limited number of persons, the moment a decision is arrived at in this House upon the construction of an Act of Parliament which is eighty or ninety years old we should bestir ourselves to turn it to the right-about. I do not wish it to be supposed that I have any amour proper in this matter, but I cannot, without a protest, allow it to go forth, as it would go forth, to the House of Commons and elsewhere that this measure had passed your Lordships' House with general assent when it contains a clause which is, first of all, justified by misapprehension, and, secondly, works, as I think, quite unparalleled injustice.

I know of no precedent for an Act which takes away from men who have a statutory right which is quite unimpeachable the right to recover their money by retrospection with reference to past transactions, and distinguishes the sheep from the goats by any such trivial distinction as that the sheep have begun their actions and the goats have not. I do not agree that there has been any such misapprehension with regard to the law. The case of Sutters versus Briggs, I understand, came here for the purpose of obtaining a reversal of the decision in the earlier case of Day versus Mayo, decided, I think, a year or two ago — certainly not very recently. I see my learned friend the Master of the Rolls (Lord Sterndale) present. He was, I think, a party to the decision in Day versus Mayo, and the losing party in that case did not venture to bring it to the House of Lords.

This action of Slitters versus Briggs, as I understand, was brought for the purpose of reversing the decision in Day versus Mayo, and before Day versus Mayo I understand the point had been taken in the Courts below and decided one way or the other. Therefore, it is a total misapprehension to think that certainly for the last two years those who carry on the business of betting have been under any justifiable conviction that there could be any doubt whatever about the meaning of the Act of 1835. If, knowing the risk they ran, they have continued their business on the chance that they would either win when they got to the House of Lords or that no one would be so shabby as to take the point, why is there to be hasty, and agreed, and (I might almost say) hustled legislation to relieve them of the consequences of their miscalculations?

The Bill was printed, so far as I know, for the first time early yesterday. The Second Heading was fixed for yesterday upon the assumption that the Bill, which was not at that time printed, would he in your Lordships' hands in time, and having been passed in the circumstances I have mentioned, the Committee stage was put down for to-day. Of course, I ought to have been here yesterday, and I am not complaining of my noble and learned friend on that account. But one cannot always be here, and as the Post Office, which distributes the Blue Papers, is not a very active institution, I first saw the Bill last night, and it was impossible for me then to put down an Amendment to it to-day. That is why I am afraid I am inflicting upon your Lordships a Second Reading speech on the Motion to go into Committee.

The noble and learned Lord admitted that the Bill could not proceed except by general consent. What I suggest is that the Bill should be proceeded with no further. For my own part I think the right course to take would be to survey the laws, which are said to be in a chaotic state, and reduce them to sense, but do not let the Legislature be invited to take sides, and to take sides in favour of the bookmakers just because, and just after, this House has decided against them.

LORD MUIR MACKENZIE

My Lords, I confess that I am taken by surprise at the attitude taken up with regard to this Bill by my noble and learned friend opposite. It is quite true that I did not speak to him with respect to bringing in this Bill. In fact I refrained from speaking, except in one instance, to any one who had taken part in the decision. I thought that on the whole I had better not. I could repeat to the House what I said last night, that I had communicated with other persons on whose opinions I have relied, and I think that if I were to name them to your Lordships your Lordships would have the same feeling. I said yesterday that I did not think that this Bill could be, or ought to be, proceeded with unless with the general consent of the House. It is the case, no doubt, that the House was not very full yesterday. Certainly, my noble and learned friend was not here, although I do not complain of that; but I am sure that anybody who was here will agree that, so far as one could ascertain, there was general assent to the Bill.

One of my difficulties at this moment, of course, is that I was by no means the most important person who dealt with this subject. I spoke for five minutes, and then the subject was taken up by the noble and learned Lord, the Lord Chancellor, who is not now on the Woolsack, and he put the case in a way which was, of course, much better than I could put it. I gathered that he was under the same impression as I was— namely, that everybody who had taken notice of this case at all was agreed in the language which I ventured to use about it, that the state of the law disclosed by the case when it came here might, at any rate, be called ridiculous. I admit that in circumstances of this sort you get very great difficulty in arriving at a decision as to who is to suffer by the remedy that is proposed. Somebody has to give up a right which he may be supposed to have, but which in this case I believe nobody ever supposed he had. It was, I believe, a revelation. The noble and learned Lord has said that it appeared that the matter had been considered in the Courts below. My information was that it had not been, and indeed a learned Judge had used, I think, in one instance the very word which I ventured to use as describing the state of the law.

I do not think that the case for this. Bill, or for proceeding with it now, ought to rest entirely upon an opinion which I can give. I think the House must feel, as I feel, that it is unfortunate that— no doubt for reasons that can be well explained— the noble and learned Lord, the Lord Chancellor, is not here, because I should not like to consent to any course taken by the House on this Bill without hearing what he has to say about it. I do not think I should be behaving courteously towards him. I have already indicated my own opinion that, if there is serious opposition to this Bill, it cannot, and ought not, to proceed. I have said that, and I still think so. It is very difficult to say that the opposition to the Bill is not formidable when it is in the hands of my noble and learned friend, because I know very few people whom I regard as more formidable antagonists on almost any question.

Therefore what I should like the noble and learned Lord and the House to consent to is to allow the Bill to pass this stage to-day, and to allow us to-morrow to discuss the question as to whether or not it should proceed. I appeal to the House not to deal with this question in the absence of the Lord Chancellor. I think it puts a great responsibility upon me, at any rate, to consent to any course being taken when I feel sure that he will have something to say about it.

LORD SUMNER

We are told by the noble Earl (the Earl of Clarendon) that the Bill that has just been read a second time, dealing with the unemployed, will occupy to-morrow, because it is very urgent and it has to pass through its further stages. Would not next week be better for this measure? There is no urgency about it.

LORD MUIR MACKENZIE

I do not agree with that. I think, as I have said before, that this is a matter which, if it is to be dealt with at all, ought to be dealt with at once. But I see now that the Lord Chancellor has returned, and I think I had better stale, in the presence of the noble and learned Lord, what has taken place. The noble and learned Lord, Lord Sumner, has taken exception to proceeding with this Bill, and has given reasons. I do not, for the moment, deny that there is great force in what he has said, but I have already stated that I could not consent to postpone this measure to-day without the noble and learned Lord on the Woolsack, who has taken a prominent part in the matter, having an opportunity of saying anything that he thinks ought to be said on the subject.

My suggestion (perhaps it is only for my own convenience) is that, being taken by surprise, after what happened before, by the opposition that is now raised, the House should adhere to the attitude which it took up yesterday, which is one of non-opposition, and allow the Bill to go through Committee to-day, and take the discussion on the Third Reading— I should like the Third Reading to be taken to-morrow, because my view is that this ought to be done quickly— or let it stand over till next week, when we can debate the matter after having had sufficient notice.

LORD BUCKMASTER

My Lords, it not infrequently happens that, owing to the compulsory absence of some noble Lord from this House, the considerations that ought to be before this House when a Bill is read a second time are not then urged, and the Motion that the Bill should go into Committee is, undoubtedly, a convenient time when matters of that kind can be raised before the House decides to proceed upon the steps in the progress of this Bill which will certainly end in its ultimately finding its place on the Statute Book.

With regard to this Bill, there are two things which have been raised by the noble and learned Lord, Lord Sumner, each of which, I think, deserves considerable attention. The first is this. He says that the Bill, as it stands, draws an arbitrary date at which certain people shall possess rights which the law allows, and when they shall be taken away; and he has complained that the Bill does what is an unusual thing— namely, it deprives people, before the passage of the Act, of existing legal remedies. That, at least, is a matter which needs consideration and could be met, of course, if the noble Lord in charge of the Bill were to say at once— and I was rather astonished that he did not— that he was quite willing that the clause should be so amended that it should speak from the date of the passage of the Bill, and not from an arbitrary, antecedent date. Probably he would have assented. He expressed no sign of assent, and that was one of the most formidable points raised by Lord Sumner.

The other point is also one that deserves great consideration. It is this. Why not take the opportunity afforded by the consequences of this decision to put the whole of the Gaming Laws of this country into something like sense and order? If you tinker with the matter each time that something happens which causes people a little surprise you will never get them put right at all. There certainly would be no objection to that, unless it could be said that this Bill is one of immediate urgency. That something, of the kind will have to be passed imagine most people are in agreement, but that it needs to be passed instantly does not seem to me to be nearly so certain. I must say I thought the proposal made by the noble and learned Lord was not an unreasonable one— either that the Bill, as it stands, should be amended so that it nay speak from the time it is passed, or that the matter should stand over until the whole question can be the subject, of full and careful consideration. Those, at least, were the matters placed before the consideration of the House, and I should think that the House might well take them into account.

THE LORD CHANCELLOR (VISCOUNT BIRKENHEAD)

My Lords, I am extremely sorry that I should not have been in the House when this discussion, unexpected by me, arose. I was sent for on some urgent public business, and had it occurred to my noble and learned friend who raised the topic to mention his intention to me I should certainly not have been guilty of the apparent disrespect of not being here when a topic was raised on which I have already contributed to the debate.

My intervention then, as now, was, as I made it plain, a disinterested one in this sense, that the Government have always made it clear through me that it was not possible for us, as a Government, to undertake, in the particular circumstances of this session, any collective responsibility for the proposal which is contained in this Bill. I have gathered from the speech of the noble and learned Lent, Lord Buckmaster — to me, I confess, an extremely welcome and useful one— the principal point which I understand the noble and learned Lord, Lord Sumner, to have taken. Let me say at once that I am most clearly of opinion that, unless the House, as a whole, is satisfied with practical unanimity that this Bill ought, in the circumstances indicated, to become law, in my judgment the noble Lord who has become its sponsor would be well advised to drop it at once. It will not have the slightest chance in the other House unless this House is plainly, and with practical unanimity, agreed in passing it through all its stages.

With reference to the point which has been taken by the noble and learned Lord, Lord Sumner, it could, I think, be dealt with in the manner which has been suggested by my noble and learned friend, Lord Buckmaster, and I have no doubt at all that my noble friend, Lord Muir Mackenzie, would be prepared to adopt the suggestion which has been made if that satisfies the objections which were taken by the noble and learned Lord. Lord Sumner. But I would certainly say plainly that if an authority who can speak with so much weight in this House as Lord Sumner can upon this or any similar subject, entertains doubt upon it even after an undertaking of the kind indicated, and it is certain that he is reflecting the feelings of those who would be influenced by him, such an atmosphere as that would make it useless to proceed with the Bill any further.

The noble and learned Lord, Lord Buckmaster, has suggested that opportunity might be taken of these circumstances to reform and re-state the whole law of gaming in this country. My noble and learned friend is sufficiently experienced in these matters to know that he is inviting me to undertake the cleansing of an Augean stable at a moment when controversy on the subject is by no means dormant and leisure is more than usually lacking. I do not in the least say that such a task would exceed the limits of such small ingenuity and knowledge as one might be able to bring to bear, but I should be indeed deluding your Lordships if I pretended at this moment that I discerned a particularly tempting opportunity for commencing this task, And; if the occasion, which is the only justification for this Bill, is as real as those who support it believe it to be, it is not by a large and general proposal of this kind that we shall meet it.

I would, therefore, venture to ask my noble friend, Lord Sumner, to make it plain whether the objection to which he has given most legitimate expression is one that would be likely to be met in the manner suggested by my noble and learned friend, Lord Buckmaster, or in any other manner that commends itself to his own ingenuity. If it is not likely to be so met, and he retains his objection, then the Bill has not, in my judgment, the slightest prospect of becoming law, and I would advise my noble friend in charge of it neither to waste his own time nor your Lordships' time upon it.

THE MARQUESS OF CREWE

My Lords, I venture to interpose for one moment before the noble and learned Lord, Lord Sumner, replies to what has fallen from the noble Viscount on the Woolsack, because, like him, I was prevented by urgent business elsewhere from being present in the House when this Bill was read a second time. But the point on which I do not feel quite clear is whether my noble friend opposite is convinced, as I gathered he was, that this Bill is really an urgent matter and that it is not the case, as the noble and learned Lord, Lord Sumner, appeared to conceive, and as, I think, my noble and learned friend, Lord Buckmaster, also appeared to conceive, that it did not very much matter from the public point of view as to whether this Bill was passed this autumn or at some future time.

Now I understand that the case is that, quite apart from the question whether certain persons may take advantage of the law as declared by your Lordships' House to repudiate their debts of honour, there are many other persons who, as trustees or executors, find themselves placed in the position of being obliged to do so. That is to say, the law compels trustees or executors to assume that the testator whose affairs they are administering would desire that his residuary legatees should be gainers by a particularly shabby fraud and that trustees have no choice in taking steps which, if they were private persons, would involve their being turned out of any club to which they might belong and of being debarred from the society of decent persons. If that is so, I think it cannot be disputed that the matter is urgent. It is by no means the case, as the noble and learned Lord, Lord Sumner, has said, that this is a matter of securing the interests of a few bookmakers. I take it that the account books and counterfoils of the cheque books of all deceased persons will he liable to examination in order that claims may be made for the return of money which they paid by cheque. It is by no means a question only of the interests of bookmakers, but the smaller class who have been so fortunate as to win, will be placed, obviously, in precisely the same position.

In those circumstances I cannot help hoping, unless I have stated thecase wrongly, that some means will be found of proceeding with the measure as quickly as possible. It would be, I think, a misfortune if it had to be put off until some time next year, and a still greater misfortune. I venture to think, if it, had to wait until the desire of my noble and learned friend. Lord Buck-master, was satisfied, that all the Gaming Laws of the country— a most confused and difficult subject— could be dealt with and placed in order. I hope, therefore, that my noble friend, Lord Muir Mackenzie, will, so far as he can, persist in his measure, and if it is found that by giving way on some point of date he can meet the opposition of the noble and learned Lord above the gangway without, causing to an excessive extent the unfairness and inconvenience to trustees and executors of wills which I have mentioned, well and good.

I am very sorry that the noble and learned Lord has found it necessary to offer opposition to this measure. We all know how much weight his opinion carries in your Lordships' House, but I do not think that his opposition could he regarded as involving a departure from the general consent of the House, if it is found that he stands alone. We can hardly offer to endow the noble and learned Lord with a liberum xeto, and 1 am sure he will agree that if the consent of the House generally is in favour of the passage of the Bill in some form, that he would not consider it reasonable that he should altogether obstruct its passage.

LORD SUMNER

My Lords, I have your Lordships' permission to say a few words although I have no right to do so, and I will express the most practical conclusion that. I can. How it came to be imagined that I could he supposed to have a liberum xeto or any other kind of veto I do not know. Certainly nothing that I have said this evening was intended to suggest, or indeed could suggest, that if the rest of your Lordships approve this Bill. I was anything more than the most insignificant worm in this House. My business was to correct what I thought was a misunderstanding and to oppose in toto that which I conceived to be unjust and unprecedented. If the noble Lord, Lord Muir Mackenzie, will leave out all the words in Clause 1 after the word "repealed" I am content; that is to say, if he will make his amendment of the Gaming Act of 1835 operative only on transactions hereafter. What. I strongly objected to was the endeavour to say that men who had acquired rights— whether they are shabby rights or not, I do not care— should have them taken away by an Act of Parliament because a considerable number of people had supposed that they had no such rights.

I quite appreciate what the noble Marquess said about the position. I think the difficulty might be overcome by enacting that any executor or trustee should not himself be chargeable for default if he did not take action to assert rights, on behalf of the testator, to recover money which had been paid by cheque as a gaming debt. That would leave the persons who would bring actions to the irreconcilable folks who, having lost, do not like losing, and desire to get their money back. I think, if my own opinion were worth mentioning, I would get rid of the whole lot, and leave people to bet as they pleased, and bring actions to recover their debts. I do not believe in interfering in this fashion, but that is another matter. If the noble and learned Lord wishes to repeal Section 2 of the Gaming Act, and thus make an end of the matter, I for one should offer no opposition. It was not in order to try and get the House to reverse the decision at which it had arrived after full knowledge of all the facts that I intervened; it was simply because I thought it my duty to intervene, at as early a moment as possible, to put right what appeared to me to be an error.

LORD MUIR MACKENZIE

My Lords, I still hold the opinion that this is a Bill that there is no hope of passing in the other House if there is any controversy in regard to it. To leave the position as it is left in the Statute is ridiculous, and I think the sooner it is amended the better. I certainly had hoped that this Bill would be allowed to go through without any opposition. I do not think that anything has been brought by way of surprise before the House. Everybody iii the country was acquainted with, and was interested in, what had taken place, and opinion was, I thought, unanimous in favour of trying to get. rid of the mess into which it appeared the Statute had got. The question is whether I should ask the House to divide now upon the Motion to go into Committee on the Bill. My own impression is that the best course would be to take the Committee stage to-morrow, and perhaps the noble and learned Lord will be good enough to put his Amendment on the Paper, as I have no doubt he would have done if I, under a misapprehension of feeling in the House— not a misapprehension as to the general feeling of the House— had not put down, this Bill for Committee stage today. There is no time for extending the business of the House. If the Bill is not got through quickly it cannot be passed, and I think it will be best that the noble and learned Lord should put down his Amendment and let us discuss it to-morrow.

LORD SUMNER

Why not go into Committee now? I understood that the noble and learned Lord on the Woolsack seemed to recognise that to be the best course.

THE LORD CHANCELLOR

I assented to that course, subject to the other Amendment by Lord Sumner being introduced on the Report stage to-morrow. We have no justification for asking your Lordships to hurry a Bill through a session of Parliament like this if it is one in regard to which there is controversy. I suggest that the House should proceed into Committee, and that the noble and learned Lord should move his Amendment, with an understanding that between now and the Report stage to-morrow the noble Lord in charge of the Bill should put down an Amendment which would produce the consequences that appear from these discussions to be desired.

On Question, Motion agreed to.

House in Committee accordingly.

[THE EARL OF DONOUGHMORE in the Chair.]

Clause 1:

Repeal of 5 & 6 Geo. 4, c. 41, s. 2.

1. Section two of the Gaming Act, 1835 (which makes money paid to the indorsee, holder or assignee of securities given for consideration arising out of certain gaming transactions recoverable from the person to whom the securities were originally given) is hereby repealed, and no action for the recovery of any money under the said section commenced on or after the twenty-fifth day of October, nineteen hundred and twenty-one, shall be entertained by any court.

LORD SUMNER

I beg to move that all words after the word "repealed" to the end of the clause be omitted.

Amendment moved—

Line 10, after (" repealed ") leave out (" and no action for the recovery of any money under the said section commenced on or after the twenty-fifth day of October, nineteen hundred and twenty-one, shall be entertained by any court ").(Lord Sumner.)

On Question, Amendment agreed to.

Clause 1, as amended, agreed to.

Remaining clause agreed to.